Posts Tagged ‘health records’

It is almost axiomatic in American jurisprudence that the duty to preserve arises for a party when that party “knows or reasonably should know” that litigation is foreseeable. That said, a recent matter out of the federal courts in New York has raised a very interesting question about evidence preservation duties, as well as when and how they extend to certain parties — including their counsel.

Corporate and litigation counsel alike recognize their (somewhat nebulous) triggering event as the “reasonable anticipation” of a dispute arising, and they respond by issuing data preservation instructions to custodians to ensure that all potentially relevant information is retained for possible review and use in such a matter. However, federal magistrate judge Joan Azrack has indicated that counsel for a party that destroys evidence might be sanctioned for failing to preserve — independent of a litigation hold — certain documents (including emails) that relate to “the lawyer’s negotiation and documentation of a loan agreement.”

What’s novel in this matter is not that this duty arises for counsel, but when and why. The case (FDIC v. Malik) involves a suit brought by the FDIC, in its role as the receiver for a mortgage company, against the mortgage company’s attorneys (et alia) relating to a series of loan transactions.

It is important to note that this case is still in process, so its implications (both for litigation- and for records-management) will be watched closely. Of particular note here is the implication that document retention regulations (in this case, arising out of the attorney’s professional responsibility rules) can establish evidence-preservation obligations where the affected party is “a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.” If we were to extrapolate this to organizations across the legal spectrum, this could represent a precedent of staggering influence to corporate America and the way it manages information.

This year’s AccessData User’s Conference will be help in Las Vegas. This conference brings together world-class instruction from real-world industry practitioners, and it provides a wealth of information related to cybersecurity, forensics, and eDiscovery.

This three-day conference will include luminaries from around the world, leading sessions and delving into the complexities related to acquiring, analyzing, and managing data in fast-paced environments and situations. There is a variety of break-out sessions and hands-on laboratories designed to improve the participants’ skills and to apply what they have learned.

ForensicUpdate editor, Johnny Lee, will participate in two panel discussions: “Data Governance and eDiscovery” and “Data Breaches.” Click here for more details.

The safeguarding of personal information by organizations has never been more difficult or more necessary. This is true not merely because of the relatively unchecked trends of data proliferation and data portability but also because of the increasingly complicated legal and regulatory landscape.

Organizations of all sizes are struggling with this, but multi-national companies have a unique set of challenges in trying to identify —much less reconcile — the myriad of rules, regulations, and laws related to the protection of personal data. This is what makes DLA Piper’s subject contribution such a welcome addition to the compliance literature.

The DLA Piper Information Law Team have published a handbook with “an overview of the applicable privacy and data protection laws and regulations across 58 different jurisdictions, including a section on enforcement. Edited by Cameron Craig, Paul McCormack, Jim Halpert, Kate Lucente, and Arthur Cheuk, the DLA Piper 2011/2012 Data Protection Laws of the World Handbook is available here.”

Grant Thornton’s latest thought leadership in the audit and compliance arena focuses on the perspective of the chief audit executive (“CAE”). The survey, entitled “Rising to new challenges: The view from the office of the CAE,” includes input from approximately three hundred CAEs from around the United States.

With “promising economic signs emerging, organizational demands are pulling internal audit in new directions.” This survey captures how CAEs are striving to balance competing goals and initiatives.

This survey also builds up on Grant Thornton’s prior CAE survey from 2011 and “confirms that internal audit is receptive to assimilating newer and broader responsibilities for evaluating emerging risks, ensuring appropriate corporate governance and incorporating technology into internal audit processes.” Click here to read the executive summary of this report.

The seventh-annual “Fraud Summit” will be held later this month at the University of Texas at Dallas. This summit is a collaboration among the Dallas Chapter of the Institute of Internal Auditors, the North Texas Chapter of ISACA, and the Dallas Chapter of the Association for Certified Fraud Examiners.

This two-day conference will include “numerous sessions with dynamic presenters on current fraud topics,” including a variety of break-out sessions designed to improve the participants’ fraud-detecting skills and to apply what they have learned. Several sessions will focus upon “advanced fraud techniques and case studies for those looking for more than just the basics.”

ForensicUpdate editor, Johnny Lee, will present on the topic of “Data Governance and eDiscovery.” Click here for more details.

A recent study from Harris Interactive indicates that, despite what appear to be known risks, organizations continue to permit high-risk data practices. The study, commissioned by Imation, surveyed several hundred IT decision-makers throughout the United States and Canada.

According to the study, 91% of organizations allow removable storage devices (e.g., USB drives, external hard drives, smart phones, etc.) on their networks. Additionally, 81% of organizations report having some policy that mandates the encryption of organizational data when employees are using removable storage devices — though over 65% of organizations report having little or no enforcement of these best practices. Put differently, despite the well documented risks of highly portable and unencrypted data leaving the building, only 25% of U.S. organizations enforce encryption on removable media.

As if these statistics weren’t staggering in their own rite, 20% of businesses report having no defined action plan to address the specter of data breach. Worse, these same 20% state that they do not intend to draft such an action plan in the foreseeable future.

For years, the higher risk of data compromise from internal players has been axiomatic.1 While these risks do not always arise from sinister acts, there are virtually no distinctions (either within the press or with regulators and potential plaintiffs) between data breaches that occur for profit versus through negligence. Like me, the study’s sponsors are surprised by the somewhat cavalier attitude of organizations that are not locking down data as well as perhaps they ought.

Countless times during my career, I’ve been asked why data classification makes financial sense for an organization. This particular conversation typically arises in the context of a rebuttal to an unpopular project that has been proposed (i.e., one that doesn’t affect the bottom line — at least in a material and self-evident way).

Data classification can mean many things, of course, but from a data security perspective it typically involves the assignment of a sensitivity rating (or level) to various data used by an organization. The purpose of this assignment is, above all, to avoid “boiling the ocean,” as we consultants like to say.

Whether an organization is responding to a specific regulatory mandate, an active litigation, or merely taking a proactive stance toward its information management lifecycle, properly classifying the data is the first step. Such classifications (e.g., top secret, secret, confidential, restricted, and unclassified) allow organizations to identify what data an organization is handling on a regular basis, how well it is securing such data, and whether significant risks are being mitigated that relate to same.

While computer applications and appliances exist to help with data classification, ultimately this is a subjective exercise. Properly done, it includes all strata of the business, incorporates a risk-based approach, and contemplates business, technical, and other points of view. Only by identifying which data are important to the business, can an organization hope to quantify how expensive and inefficient its one-size-fits-all data management strategy truly is.

While data classification is most often cast in the light of risk-avoidance, there are significant benefits to classifying data that do, in fact, translate to the bottom line. Indeed, when an organization invests the time to classify its data, there are frequently entire populations of content that are being secured at great cost — though the actual content of these files merits no such security. These savings alone can pay for a data classification exercise.

Similarly, when organizations truly identify what data are important to their day-to-day operations, a great focus is brought to bear on how those data are created, managed, copied, distributed, and (ultimately) retired. This heightened awareness likewise has tremendous benefit for companies — whether in heavily regulated industries or not.

Sponsored by Grant Thornton LLP’s Forensic & Litigation professionals, the Forum offers educational events and resources for today’s in-house counsel and corporate senior management. We collaborate with trial and transaction lawyers from some the nation’s leading law firms to bring you periodic complimentary webcasts addressing important financial, operational and legal issues that can impact your organization.

Each event will be supported by a customized Toolbox — documents and other resources offering guidance on the topics covered by the webcast. The next Toolworks Forum will focus upon the state of the e-discovery marketplace; the importance of intelligent, proactive information and litigation management; and practical steps companies can take to reduce expenses and risks associated with civil litigation and government investigations.

This webinar event will be held on Thursday, January 19, 2012, and it will begin at 1:00pm Eastern time and continue for 90 minutes. CLE credit has been applied for, and full details can be found here. Johnny Lee, Director in Grant Thornton’s Forensic & Litigation practice, and Dante Stella, eDiscovery practice leader at Dykema Gossett, will present.

I am pleased to announce that I will join luminaries from Vedder Price, a prominent U.S. law firm, in a discussion on “Managing your Data Avalanche” on November 16, 2011. This webinar will delve into strategies for satisfying an organization’s legal obligations associated with Records Retention, eDiscovery, Litigation Holds, and Data Privacy.

“All too often, companies approach their data management obligations reactively and in a piecemeal fashion. This need not be the case; in fact, companies can satisfy their legal obligations with greater certainty — and more economically — through comprehensive data management strategies.”

This Webinar will be of interest to General Counsel, Chief Compliance and Information Officers, and those with a key role in managing eDiscovery or litigation within an organization. This Webinar will provide an overview of legal trends in data management, with a specific focus on social media, cloud computing, eDiscovery, litigation holds, and data breach preparedness and response. We will discuss ways in which companies can better manage their data through proactive data-management strategies.

To register for this webinar, please click here. (Login information and presentation materials will be sent to registrants prior to the webinar.)

Last week, I had the pleasure of presenting to a lively audience at the world’s leading conference for IT governance, risk and compliance professionals. The event, hosted at the Ritz-Carlton Hotel in Orlando by the good folks at ISACA, brought together a panoply of experts in the auditing, compliance, privacy, and information security space.

I presented on the subject of Data Governance and Electronic Discovery, and how these concepts represent “flip sides of the same coin.” What was particularly rewarding for me was the level of interest and participation during our interactive case study. Thanks to all who attended and participated last week…I enjoyed myself immensely, and I hope that you found it a rewarding discussion.